hit and run

Justice for Cyclists: Boulder County DAs Push for Results in Cycling Cases

By Maureen & Megan

Vehicular assault - Leaving the scene of a crash involving serious bodily injury - Failure to notify police of a crash. These are some of the initial charges brought against two drivers in collisions with cyclists in Boulder County. In both cases, the cyclists were seriously injured and required surgery.

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Boulder cyclist Travis Lechner was on a group training ride in Longmont, CO in December 2017 when he was struck by a pick-up truck going at least 45 mph. Travis was making a left-hand turn when the driver attempted to pass him on the left, crossing a double yellow line.

A witness told police that Travis had signaled before turning left.

The collision sent Travis flipping up over the truck, landing in a ditch approximately 50 feet down the road. He was transported by ambulance with multiple injuries including a broken clavicle and wrist, a concussion, fractured ribs and multiple abrasions.

His left shoulder was completely shattered.

Travis shown with DA Adrian VanNice, fellow cyclist (L), and Megan (R)

Travis shown with DA Adrian VanNice, fellow cyclist (L), and Megan (R)

An off-duty police officer riding in the group of cyclists canvassed the area following the crash. He happened to find the truck that met a witness’ description and called police. The driver, who was drunk at 10 am, neither had a valid driver’s license nor insurance. He was arrested and taken to jail. This was his second DUI.

Travis’ injuries required surgery to his wrist and shoulder. Unable to care for himself following surgery, he stayed at his coach’s house for over a month. His wrist was in a cast and he had to wear a sling, which completely immobilized him. The first night following surgery to his shoulder, Travis woke up in the middle of the night in the worst pain he had ever experienced. “It hurt about 10,000 times worse than getting hit by a car. I have never been in so much pain my whole life.”

He missed almost two months of work due to his injuries and suffered financial damages. He was not able to drive, lost fitness and training time on his bike, and could not sleep most nights due to the sling he had to wear as well as sleeping upright at a 45-degree angle. He needed help doing everyday tasks such as showering, getting dressed and cooking.

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Like Travis, 17 year-old Riley Sheehan was also struck by a driver in Boulder County who then fled the scene. It was March 7, 2018. Riley, an elite junior cyclist who rides for LUX Cycling Team and USA Cycling, was training in preparation for three international races in Europe at the end of March.

He was riding on the far right of the shoulder on U.S. 36 when he heard the sound of an engine. It was a truck going 45-50 mph. The driver tried to get around two lanes of traffic by passing on the right using the shoulder. That’s when he crashed into Riley, launching him into the air.

The driver then ran over the bike and left the scene of the crash.

Riley hit the ground so hard that his clavicle broke, causing a section of the bone to penetrate into his chest muscle. His helmet broke in five different places when his head slammed into the ground. He suffered a concussion, enduring a headache and nausea and had scrapes and bruises all over his body. “I felt so angry that someone would hit me and then leave me by the roadside.”

Witnesses reported that a red truck had been driving aggressively prior to the crash. One witness followed the driver and attempted to get him to return to the scene. The witness told the driver that he had his license plate number and that police had been called. The driver yelled at the witness and sped away, leaving the scene again.

The license plate traced back to a red Ford F-150 owned by a Greeley resident.  Officers observed damage to the front right side of the truck when they arrived at the driver’s house. He was arrested by Colorado State Patrol on suspicion of vehicular assault, leaving the scene of a crash involving serious bodily injury, failure to notify police of the crash, reckless driving, passing on a shoulder, failure to obtain a valid CO registration within 90 days of becoming a resident and driving with expired plates. The driver had moved from Texas to Colorado in 2014 but still had Texas plates.

Too often these collisions are treated as ‘just accidents,’ but that diminishes what my family and I have been through.
— Riley Sheehan addressing the Court, at the driver's sentencing hearing

Riley had to undergo surgery to repair his broken clavicle. In the days leading up to the surgery, he was in extreme pain and could not sleep. Further surgery will be required to remove the stainless steel plate and screws. Riley still does not have full range of motion and can feel the metal plate every time he moves his right shoulder.

The experience has been painful, frustrating, depressing and draining both physically and emotionally. Riley missed school, training and racing opportunities.

His life and physical body are forever altered, leaving him to question his bike racing future.

Riley’s family with Fred Johnson, Chief Trial Deputy, 20th Judicial District Attorney’s Office

Riley’s family with Fred Johnson, Chief Trial Deputy, 20th Judicial District Attorney’s Office

When it came time for the drivers’ criminal case sentencing hearings, both Travis and Riley, along with his family, attended and addressed the court. They took part in the process, and it made a difference. Travis and Riley wanted to emphasize to the court, the district attorneys and to the defendants that what happens in these cases matters very much to the victims as well as to the cycling community as a whole.

Riley’s mom spent well over 100 hours filling out paperwork, documentation, getting medical referrals and going to appointments with Riley. His dad had to miss work as well.

Travis felt that it was important to attend, so that people see there is more going on. It is not just a bike that got hit on the road. “I think it’s important we show up and people know that we’re paying attention. We want to be seen and heard,” said Travis.

Fred Johnson, the DA in Riley’s case, believes that community members are an integral part of the criminal justice system:

One of our most important functions is making sure their voices are heard.  Victims at a sentencing hearing are the persons most affected by the crimes committed, and their input is extremely important to us as prosecutors and to the judge deciding the sentence.  When the crime implicates a specific community’s interest and safety such as the cycling community, it’s important for members of that community to attend sentencing hearings so the court can hear their perspective directly and consider it in reaching a just result.
— Fred Johnson, Boulder DA

The Boulder DA’s Office took these cases seriously and made very severe punishment recommendations to the judge.

Boulder County is a unique community and a great place to ride with an avid cycling community. The safety of the cycling community is very important to us as an office and we strive to enforce the laws in a way that maximizes the effectiveness of those laws in ensuring safety on the roads.  We take violations of the law that hurt cyclists extremely seriously, especially when a driver flees the scene in an effort to avoid responsibility. This disregard for the safety and well-being of the victim is especially egregious because it puts the victim’s life and physical safety in further jeopardy,” said Johnson.

The driver in Travis’ case pled guilty to driving under the influence and reckless vehicular assault. He received a suspended sentence of one year in the Boulder County Jail and must complete 200 hours of community service and three years of probation as well as serve nine months of jail-work release.

In Riley’s case, the driver pled guilty to both felony counts - leaving the scene of an accident causing serious bodily injury and vehicular assault. He was sentenced to three years of probation, with 90 days of jail, 120 more days of jail on work release, and 200 hours of community service work.  Conditions of probation included no driving until probation is completed and the court approves it, substance abuse and mental health evaluations with any recommended treatment, and completion of a bicycle driver’s course.

Our office plans to keep showing up at sentencing hearings. It matters. It makes a difference. It counts! #ShowUP. #CrashNOTaccident

Drunk Driver Hits Cyclist From Behind, Flees Scene - Insurer Asserts Comparative Negligence Defense

On June 9, 2015, Brandon was out for a bike ride.  Having recently moved to Colorado, this was one of his first few rides in the Littleton area.  It was just before 6pm, and he was on his way back home. 

Without warning, Brandon was hit from behind by a motorist, and thrown off his bike into the street. His head, face, hands and knees were bleeding badly.  Despite his obvious injuries, the motorist fled the scene.  Brandon recalls none of this- as his next/first memory was waking up in the emergency room, where he’d been transported by ambulance.

Luckily, a passerby witnessed the event and caught the license plate number of the fleeing motorist.  Police were called and located the driver in her home about an hour after the collision.  She was drinking Schnapps...  The officers conducted a Blood Alcohol Test (BAC). 

We later learned that the motorist worked for police and fire dispatch.  It is believed she thought that if she began drinking at home, perhaps the BAC could not conclusively prove she had been drinking at the time of the crash.  However, when results came back showing her BAC was .317, her theory fell apart.  This level of intoxication meant that she either drank to near-deathly levels in that one hour, or more realistically, she had been drinking before the crash, was intoxicated at the time she hit Brandon, and then continued drinking once home. 

Hit a human.  Leave.  Run home and start slamming shots?  Say what?

The driver was cited with numerous violations.  During the pendency of her criminal case, we learned that her versions of what happened varied drastically;  from, “I thought I hit a pothole,” to “A cyclist darted in front of my car,” to “The Arby’s fell off my passenger seat onto the floor and I reached down to pick it up.” Suffice it to say, these explanations all fell short of accepting responsibility.

Meanwhile, Brandon had hired our office to represent him, and we had begun the process of pursuing the motorist’s insurance – State Farm (SF)–for his injuries and claims.  As in our last blog post, SF’s initial settlement offer was grossly inadequate in light of his injuries, as well as in light of their insured’s/the motorist’s conduct.  At our urging they increased their offers, minimally, $5000 at a time, though ultimately still way outside the realm of possible settlement value.  This, despite their insured’s guilty plea in the traffic/criminal case...  SF seemed to think that they did not owe my client adequate compensation. So, we filed suit.   

In Colorado, when someone commits negligence, but also does so with exacerbating factors, (or what we like to call, willful and wanton conduct), a Plaintiff is permitted to seek leave from the Court to add an additional claim for punitive damages (C.R.S. 13-1-102).  Punitive damages are not based on any damages or claims that the Plaintiff incurred – they are solely intended to punish someone for their misconduct.  A jury may award any amount it chooses for punitive damages – it is solely intended to punish someone with a large monetary verdict.  In Colorado, insurers don’t eventually pay a punitive jury award – the actual wrongdoer does.  Here, our plan was to amend our Complaint to add a claim for punitives, to allow the jury to punish the driver for her conduct with – we hoped – a large monetary sanction. 

However, before we got to this juncture, we noted the content of the Answer filed by State Farm’s defense counsel.  In it, State Farm, on behalf of its insured/at-fault driver, asserted some curious affirmative defenses, including one that claimed Brandon contributed to the collision:

"The proximate cause of Plaintiff's claimed damages and/or injuries, if any, may have been Plaintiff's comparative negligence, which conduct either bars or reduces Plaintiff's recovery, if any, in accordance with Colorado's Comparative Negligence Statute.  C.R.S. 13-21-111 (2015)." 

SF also claimed that it must’ve been someone else that caused Brandon's injuries and damages:

The proximate cause of Plaintiff’s claimed damages and/or injuries, if any, may have been the act or omissions of a third party or parties whom Defendant has no control, to whom Defendant has no relationship, and for whom Defendant is not legally responsible.”

Interesting.  

Now in the practice of defending law suits, it is fairly common for the Defendant’s Answer to contain some boilerplate language, as well as boilerplate affirmative defenses.  However, under the Colorado Rules of Civil Procedure, "The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."  (C.R.C.P. Rule 11(a)).

Keep in mind that by the time the Answer was filed, the motorist had pled guilty in the criminal case to charges resulting from her careless driving causing injury, her fleeing the scene, and her driving while intoxicated.  While the burdens of proof are different in the criminal and the civil cases, and her plea of guilty in the criminal case would not per se be admissible in Brandon's civil case, her attorneys knew that she had confessed to her actions.  They knew, because we’d provided them the transcript of her sentencing hearing... Where I was present, as was Brandon and his wife and their young son. 

Imagine our surprise then, to see SF take this approach in litigation.  We could not wait to see what they claimed Brandon did, to contribute to him being hit from behind by their drunk driver!  We found this conduct very curious – that the defendant and her counsel would deny her responsibility and negligence, in this pleading filed with the Court.  We wanted very much for the jury in this case to hear about her denials and to compare that to the testimony of the bystander who witnessed the collision, and the testimony of the law enforcement officers who visited her home shortly after.  We wanted the jury to compare her denials of fault with her legally-documented intoxication.  What a trial this would be! 

SF counsel by filing such an Answer, had placed its insured in a very precarious position: punitive damages would not be paid by SF, nor could their insured discharge them in bankruptcy.  If we went to trial and got a large punitive award, this Judgment would follow (and likely financially cripple) the driver for life.  And Jeffco juries are known to punish people who do things like this with large punitive verdicts.  Imagine the jurors' response to hearing that the Answer and legal position adopted by the driver and her counsel, was that Brandon had done something to contribute to this collision!  SF had exposed its insured to this very real possibility, with the Answer it filed.  It made statements in the Answer that arguably violated Colorado Rules regarding pleadings and implicated sanctions. 

We pointed out this interesting scenario to the lawyers at SF.  The case settled shortly thereafter, for the amount we demanded pre-suit.

Boilerplate language in a Defendant’s Answer given these facts, was a game changer.  Moral of the story: while multi-billion dollar insurance companies may have large, well-staffed law firms and attorneys at their disposal, failure to pay attention to the actual issues can be devastating.  This is why our firm controls (carefully!) our caseload, and this is why we read Answers and affirmative defenses carefully, and show up at sentencing hearings.  Bottom line: we won’t allow our injured clients to be bullied.  To have a driver drink, hit a cyclist from behind and flee the scene, and then to have the audacity to respond in an Answer that he was in ANY WAY at fault or a contributing factor, is offensive. Sometimes a case resembles a really hard bike ride: It's a slog to the top of the climb, but hanging in there, and continuing to work hard, does pay off.  Once again we had a tenacious client, who was not desperate to settle, and who was game to take this case all the way to trial. It takes courage and fortitude- as I've discussed in previous blog posts.  

Now, what about that driver?  What happened to her?  The day of her sentencing hearing in Judge Enquist’s courtroom (Jeffco) was the Monday following a Friday hearing, in which a young man who’d been drinking, drove up Lookout Mountain on the wrong side of the road and caused cyclist Tom Flanigan’s death.  There, Judge Enquist had sentenced the driver to the max allowed under the terms of his plea: 10 years in the Department of Corrections (DOC).  Now, 3 days later, Judge Enquist was again hearing facts of a drunk driver hitting a cyclist.  She was beyond furious.  Under the terms of the plea reached with the District Attorney’s office, the Judge sentenced this driver to six years - the max she could order under the plea.  Counsel for the Defendant asked for a stay of execution (a few days’ time) so that the driver could get her affairs in order.  The Judge said no – she was remanded immediately and began serving her sentence that day.  Of the 6 year sentence, she will likely only serve 12-15 months total. 

Did we want to see this mother and wife sit in a jail cell?  Did it make Brandon and his wife happy, or feel any better?  Did it feel like justice?  Of course not.  We all wish this had never happened and that this woman had not chosen to drink, drive, hit a cyclist and then intentionally flee the scene.  It impacted everyone's life in a negative way.  Situations like this are exactly the reason why Colorado bike advocates worked with the legislature to make the hit-and-run statute penalties stiffer: because if someone "accidentally hits a cyclist," that’s bad enough, but if they intentionally leave the scene and EMS is not immediately summoned to care for the cyclist, they may (and often do) die from their injuries.   Leaving the scene of a bike crash is an act that deserves to be punished harshly. 

If you’d like to read the sentencing hearing transcript: